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CASE NO.: Appeal (civil)  2637 of 2006

PETITIONER: North Eastern Karnataka R.T. Corpn.

RESPONDENT: Ashappa

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Civil) No.9644 of 2005]

S.B. SINHA, J :

       Leave granted.

       This appeal is directed against a judgment and order dated 2.03.2005  passed by the Karnataka High Court in Writ Appeal No. 3976 of 2002  whereby and whereunder the writ appeal filed by the Appellant herein from  a judgment and order dated 11.06.2002 passed by a learned Single Judge of  the said High Court in W.P. No. 25259 of 1999 was dismissed.

       The Respondent was working as a conductor.  He remained  unauthorisedly absent from 27.11.1990 to 02.12.1990.  He did not report for  duty with effect from 16.05.1992.  His leave records were seen and it was  found that he had repeatedly remained unauthorisedly absent.  On the  aforementioned charges, a departmental proceeding was initiated against  him.  He was found guilty of commission of the said misconduct and was  directed to be dismissed from service by an order dated 6.08.1994.  He  raised an industrial dispute in relation to the said order of dismissal from  service culminating in a reference being made by the Government of  Karnataka to Labour Court, Gulbarga for resolution of the said dispute.   A  preliminary issue was raised before the Labour Court and by a judgment and  order dated 30.04.1996, it was found that the disciplinary proceedings held  as against the Respondent was not fair and legal.  The parties thereafter  adduced their respective evidence before the Labour Court.  By an award  dated 28.06.1996, it was held that the Respondent remained absent from  27.11.1990 to 02.12.1993 and, thus, committed a misconduct.  It was,  however, opined:

"23. In a normal course the reasonable punishment  would be to disallow the back wages and  continuity of service from the date of dismissal to  till the date of reinstatement.  But in this case the  D.E. has been set aside and the claimant has been  granted interim relief.  If the back wages and  continuity of service are disallowed from the date  of dismissal to the date of reinstatement the  punishment would be somewhat unreasonable one.   I am of the opinion that it is a fit case to disallow  the back wages and continuity of service from the  date of dismissal, i.e., 6-8-94 till the date of  granting the interim relief, i.e., 29.1.95 as a lesser  punishment."

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       It was, however, directed:

"The Respondent is directed to reinstate the  claimant I-Party to his original post.  The claimant  I-Party is entitled for back wages at the rate of  75% of the wages what he was getting at the time  of dismissal or 75% of the wages in the current  rate whichever is more from the date of granting  the interim relief 30.1.95.  The claimant is deemed  to have been continued in servie from the said  date.

       It is hereby ordered that the claimant I-Party  is not entitled for back wages and continuity of  service from the date of dismissal i.e., 6.8.94 to till  the date of granting the interim relief i.e., 29.1.95  as a lesser punishment.  I direct both the parties to  bear their respective costs."

       A writ petition was filed thereagainst by the Appellant which was  dismissed by a learned Single Judge of the High Court holding:

"When a worker has remained unauthorisedly  absent for such a long duration in the normal  circumstances, Labour Court was not justified in  interfering with the order of punishment imposed  by the management but in the facts of the case, the  workman was awarded some interim relief in the  year 1995 and by an interim order of this court in  the year 1999 he has been reinstated and has been  working.

       Taking these factors into consideration and  having regard to the long absence of the workman,  it is a fit case that he should be denied the payment  of backwages from the date of dismissal till the  date of reinstatement."

       As noticed hereinbefore, the writ appeal filed by the Appellant has  been dismissed.

       The learned counsel appearing on behalf of the Appellant would  submit that the Labour Court as also the High Court committed a serious  error in arriving at a finding that absenting oneself from duty for such a long  time can be treated to be a minor misconduct and remaining absent from  duty for 129 days should not have been treated leniently and as such, the  impugned judgment cannot be sustained.  He also pointed out that the  finding of the Labour Court in paragraph 19 of its award was that the  absence was from 27.11.1990 to 2.12.1993, a period of three years and five  days.

       The charges against the Respondent were proved.  Even the Labour  Court, before whom the parties adduced evidences, found that the  Respondent was absent for over three years.  The Labour Court, however,  proceeded on the basis that over-staying on leave or absence from duty  partook to the nature of a minor offence.   

       Remaining absent for a long time, in our opinion, cannot be said to be  a minor misconduct.  The Appellant runs a fleet of buses.  It is a statutory  organization.  It has to provide public utility services.  For running the buses,  the service of the conductor is imperative.  No employer running a fleet of  buses can allow an employee to remain absent for a long time.  The

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Respondent had been given opportunities to resume his duties.  Despite such  notices, he remained absent.  He was found not only to have remained absent  for a period of more than three years, his leave records were seen and it was  found that he remained unauthorisedly absent on several occasions.  In this  view of the matter, it cannot be said that the misconduct committed by the  Respondent herein has to be treated lightly.   

       In Delhi Transport Corporation v. Sardar Singh [(2004) 7 SCC 574],  this Court opined:

"11. Conclusions regarding negligence and lack of  interest can be arrived at by looking into the period  of absence, more particularly, when same is  unauthorised. Burden is on the employee who  claims that there was no negligence and/or lack of  interest to establish it by placing relevant  materials. Clause (ii) of para 4 of the Standing  Orders shows the seriousness attached to habitual  absence. In clause (i) thereof, there is requirement  of prior permission. Only exception made is in  case of sudden illness. There also conditions are  stipulated, non-observance of which renders the  absence unauthorised."

       Yet recently in State of U.P. v. Sheo Shanker Lal Srivastava and  Others [(2006) 3 SCC 276], it was opined that the Industrial Courts or the  High Courts would not normally interfere with the quantum of punishment  imposed upon by the Respondent stating:

"It is now well-settled that principles of law  that the High Court or the Tribunal in exercise of  its power of judicial review would not normally  interfere with the quantum of  punishment.   Doctrine of proportionality can be invoked only  under certain situations.  It is now well-settled that  the High Court shall be very slow in interfering  with the quantum of punishment,  unless it is found  to be shocking to one’s conscience."

       The said principle of law has been reiterated in A. Sudharkar.v. Post  Master General, Hyderabad and Anr.[2006 (3) SCALE 524] stating:

       "Contention of Dr. Pillai relating to quantum  of punishment cannot be accepted, having regard  to the fact that temporary defalcation of any  amount itself was sufficient for the disciplinary  authority to impose the punishment of compulsory  retirement upon the Appellant and in that view of  the matter, the question that the third charge had  been partially proved takes a back seat.

       In Hombe Gowda Educational Trust and  Another v. State of Karnataka and Others [(2006)  1 SCC 430], this Bench opined:

"The Tribunal’s jurisdiction is akin to one  under Section 11A of the Industrial Disputes  Act.  While exercising such discretionary  jurisdiction, no doubt it is open to the  Tribunal to substitute one punishment by

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another; but it is also trite that the Tribunal  exercises a limited jurisdiction in this behalf.   The jurisdiction to interfere with the  quantum of punishment could be exercised  only when, inter alia,  it is found to be  grossly disproportionate.

       This Court repeatedly has laid down  the law that such interference  at the hands  of the Tribunal should be inter alia on  arriving at a finding that no reasonable  person could inflict such punishment  The  Tribunal may furthermore exercises its  jurisdiction when relevant facts are not taken  into consideration by the Management  which would have direct bearing on the  question of quantum of punishment.

       Assaulting a superior at a workplace  amounts to an act of gross indiscipline.  The  Respondent  is a teacher.  Even under grave  provocation a teacher is not expected to  abuse the head of the institution in a filthy  language and assault him with a chappal.  Punishment of dismissal from services,  therefore, cannot be said to be wholly  disproportionate so as shock one’s  conscience.  

       A person, when dismissed from  services, is put to a great hardship but that  would not mean that a grave misconduct  should go unpunished.  Although  the  doctrine of proportionality may be  applicable in such matters, but a punishment  of dismissal from service for such a  misconduct cannot be said to be unheard of.   Maintenance of discipline of an institution is  equally important.  Keeping the  aforementioned principles in view, we may  hereinafter notice a few recent decisions of  this Court."

       In State of Rajasthan and Another v. Mohd. Ayub Naz [(2006) 1 SCC  589], this Court held:

"For the foregoing reasons, we are of the opinion  that a government servant who has willfully been  absent for a period of about 3 years and which fact  is not disputed even by the learned Single Judge of  the High Court, has no right to receive the  monetary/ retrial benefits during the period in  question.  The High Court has given all retrial  benefits which shall mean that a lump sum money  of lakhs of rupees shall have to be given to the  respondent.  In our opinion, considering the  totality of the circumstances, and the admission  made by the respondent himself that he was  willfully absent for 3 years, the punishment of  removal imposed on him is absolutely correct and  not disproportionate as alleged by the  respondent\005"

       For the reasons aforementioned, the impugned judgment cannot be

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sustained which is set aside accordingly.  The appeal is allowed.  No costs.